The Issue The issue for determination is whether the Florida Department of Labor and Employment Security illegally rejected Petitioner's bid as nonresponsive.
Findings Of Fact Fred Boozer, Sr., (Boozer), the Petitioner, owns Boozer Properties, a family business which includes a building at 2235 South Babcock Street, Melbourne, Brevard County, Florida. The building is currently occupied by staff of the Florida Department of Labor and Employment Security (LES) and other tenants. In south Brevard, LES staff also occupies another building in Palm Bay. Because of staff expansion and the need to co-locate its offices, LES issued a Request for Proposal (RFP) for Lease No. 540:0904 on January 28, 1992. The RFP had been previously advertised but was successfully challenged on issues unrelated to the issues in this proceeding. The January 1992 RFP sought approximately 11,474 to 11,818 square feet of office space. The RFP also specified that 95 off-street parking spaces be provided for the exclusive use of LES employees and clients. The spaces were to be suitably paved and lined, and under the control of the bidder. The RFP advertised a pre-proposal conference on February 4, 1992. No bidder attended, and no objections to the RFP were filed. Six responses were received on the February 28th deadline, one of which was immediately determined to be nonresponsive. The remaining bid proposals were evaluated, and Boozer's bid, offering his Babcock Street site, and 95 parking spaces, received the highest points from the evaluation committee. During a recent LES bidding process for office space in West Palm Beach, a problem arose with a bidder's ability to provide the required parking spaces. Cognizant of this, the LES leasing manager contacted the City of Melbourne to determine whether the apparent bid winner, Boozer, could meet his obligation to provide 95 spaces. The written response dated March 20, 1992, from Dominic Mauriello, a Melbourne city planner, provides his estimation that, for the various uses in the Babcock Street building, 207 parking spaces would be required. The memo states that a site plan on file at the city planning office reflects that there are 165 spaces. The site plan attached to Boozer's bid proposal submitted to LES indicates that 175 spaces are available. LES staff person, Lynne Mobley, telephoned Fred Boozer on March 24, 1992, informing him of the memorandum from the city. He responded with a request that he be allowed twenty-four hours to provide additional information. By March 27, 1992, the LES leasing office had not received further information from Boozer. The RFP had advertised a 30-day deadline for the bid award, which deadline fell on a weekend. The agency considered that it needed to make the award on Friday, the 27th. After contacting the City of Palm Bay to assure that the next highest rated response could deliver the requisite parking spaces, a letter was sent notifying Woodlake S.W. No. 1, Ltd., (Woodlake) of its award. In a letter dated March 27, 1992, LES notified Boozer that its bid was determined nonresponsive based on the outcome of investigation and consultation with the city regarding his inability to produce the required 95 exclusive spaces. In the meantime, Fred Boozer had contacted Peggy Bray, the City's Planning and Zoning Administrator, who provided an amended estimation stating that 190 spaces would be required for the Babcock Street site, and that the site currently includes 184 parking spaces. Ms. Bray's letter, dated March 27, 1992, states that in order to provide 95 spaces for the Department of Labor, 1800 square feet of office space would need to remain vacant. The Bray letter was immediately sent by facsimile transmission to LES, and was received the afternoon of March 27th, after the award and rejection notices were sent. Boozer's building is approximately 39,000 square feet. Several tenants are month to month lessees, and another tenant is expected to move prior to the beginning of the LES lease term. Boozer is willing to keep vacant the 1800 square feet and contemplated that necessity when he submitted his bid proposal. He did not include this agreement in his written bid response, but neither did LES specifically ask, either in the bid form or at the time of the committee's site walk-through prior to the bid award. Boozer contends that he responded on the bid proposal that he would provide 95 exclusive spaces and he remains willing to provide those spaces. At hearing, Boozer disclosed that 20 additional parking spaces are located adjacent to the subject property and are available for use by HRS' County Health Services, another tenant in the Babcock Street building. The spaces would reduce by 20 the spaces required by the city code, but their existence was not disclosed in the bid proposal as they are not part of the attached site plan. Boozer's onsite parking spaces range from one-half to one foot short of the eleven-feet width required by the city code. No evidence was presented with regard to any pending or contemplated enforcement action, and LES did not base its decision on this defect. LES did base its decision on a good-faith reliance on the communication by a member of the City of Melbourne planning staff. Even when that initial communication was corrected by the planning administrator, the number of spaces available were still less than needed for LES purposes and to comply with the City's code. LES did not anticipate, nor was it informed prior to bid award, of Boozer's ability and willingness to keep space vacant to comply with his commitment to provide 95 parking spaces to LES.
Recommendation Based on the foregoing, it is hereby, recommended that a final order be entered dismissing Petitioner's protest of intended bid award. RECOMMENDED this 18th day of June, 1992, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2372BID The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings of Fact Adopted in paragraphs 2, 3 and 4. Adopted in paragraphs 4 and 9. Adopted in paragraph 6. Adopted in substance in paragraph 7. Rejected as unnecessary. The testimony of Ms. Mobley is that she did not receive the message. Adopted in paragraph 10. Adopted in paragraphs 8 and 9. Adopted in paragraphs 10 and 13. Rejected as unnecessary. 10-13. Adopted in paragraph 11. Rejected as unsubstantiated by competent evidence. Adopted by implication in paragraph 5. Rejected as irrelevant, except as to Intervenor's spaces, which is adopted in paragraph 8. 1718. Rejected as unnecessary and irrelevant. Respondent's Proposed Findings of Fact 1. Adopted in paragraph 3. 2. Adopted in paragraph 1. 3. Adopted in paragraph 2. 4-5. Adopted in paragraph 4. 6-7. Adopted in paragraph 5. 8. Adopted in paragraph 6. 9. Adopted in paragraph 7. 10-11. Adopted in paragraph 8. 12. Adopted in paragraph 10. 13. Adopted in paragraph 12. 14. Adopted in paragraph 9. Intervenor's Proposed Findings of Fact 1-2. Adopted in substance in paragraph 3. 3. Rejected as unnecessary. 4-5. Adopted in paragraph 4. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in paragraph 11. Adopted in paragraph 4. Adopted in paragraph 5. Adopted in paragraph 6. Adopted in paragraph 7. Adopted in paragraph 10. Adopted in paragraph 9. 15-16. Adopted in paragraph 8. Rejected as unnecessary. Adopted in Preliminary Statement. 19-28. Rejected as unnecessary. COPIES FURNISHED: Howard M. Swerbilow, Esquire Post Office Box 541271 Merritt Island, FL 32954-1271 Edward A. Dion, Esquire Department of Labor and Employment Security Suite 307, Hartman Building 2012 Capital Circle Southeast Tallahassee, FL 32399-2189 Jack Spira, Esquire 5205 Babcock Street N.E. Palm Bay, FL 32905 Alan Taylor Elizabethan Development Corporation 245 Avenue O S.W. Winter Haven, FL 33880 Frank Scruggs, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle S.E. Tallahassee, FL 32399-2152 Cecilia Renn Chief Legal Counsel Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle S.E. Tallahassee, FL 32399-2152
Findings Of Fact Ramchandra Jakhotia and Rashmi Jakhotia, his wife, acquired the King Cole Motel at 401 East Shore Drive, Clearwater, Florida in 1983 and have owned the property since that time. At the time of acquisition and for some time prior thereto the property included a commercial marina with 22 slips. In 1985 the City of Clearwater revised its Development Code effective October 13, 1985 and, incident thereto, effective July 7, 1988, enacted Section 114.05, Live-Aboard Vessels as Ordinance 4597, Clearwater City Code. That enactment provided, in part, that: Prohibited; exceptions: It shall be unlawful for any person to moor any live-aboard vessel at any location within or upon the navigable waters in the City for any period of time in excess of seventy-two (72) hours, except as follows: At a marina facility for which conditional use approval has been obtained, or a marina facility in existence as of October 13, 1985 for which conditional use approval would otherwise be required;... In January 1986 a survey was taken of all marinas within the City of Clearwater to determine the number of live aboard vessels coming within the purview of the revised Development Code. At this survey eight live aboard vessels were occupying berths at the King Cole Motel marina and this was the number determined to be grandfathered for which no conditional use approval would be required. In 1988 King Cole Motel applied for conditional authorization to utilize 14 additional berths for live aboard vessels. This conditional use was approved subject to the applicant installing a pump-out facility and meeting the parking requirements. Although the parking requirements for a commercial marina, i.e., 0.5 parking space per slip, is the same as the parking requirement at marinas for live aboard vessels, the latter generally place a greater demand on parking spaces than does non-live aboard vessels. To change the approved use from commercial marina without live aboards to live aboards is a change in the use and requires conditional use approval. Before conditional use approval can be granted the applicant must comply with all code requirements, such as required parking spaces, at the time of the change in use. At the time Appellant acquired the King Cole Motel the 22 commercial slips were grandfathered as an authorized use without any parking being provided. Accordingly, as a 22-slip commercial marina Appellant did not have to provide parking. When the eight slips used for live aboards were counted in 1986 they too were grandfathered in without the need for parking spaces. However, when Appellant applied in 1988 for authorization to use 14 other slips for live aboard vessels, the code required the applicant to provide seven parking spaces. To his credit Appellant obtained the use of seven parking spaces down the road from the marina but those spaces were not contiguous to Appellants' marina as required by the code. Therefore, Appellants' use of the additional slips for live aboards did not meet the parking requirement in his conditional use approval. In 1992 Appellant applied for a variance of the seven parking spaces required to allow the use of these additional slips by live aboard vessels. This hearing was held before the Development Code Adjustment Board on February 11, 1993 and it is from the denial of this variance that this appeal is taken. The Board denied the variance requested because the Appellant failed to demonstrate that the standards established by Section 45.24 Land Development Code were met. In these proceedings Appellant presented no additional evidence to support the variances requested than was submitted to the Board.
The Issue The issues presented by this case concern the entitlement of the Intervenors, Mr. and Mrs. Mayer, to be granted zoning variances, in keeping with the provisions of Section 131.016(e), City of Clearwater Building and Zoning Regulations, to vary from the conditions set forth in Section 131.044, City of Clearwater Building and Zoning Regulations, dealing with the area and dimension regulations for RS-50, Single-Family Residents. In particular, the Intervenors would request that the front setback line be reduced from 25 feet to roughly feet and that a variance concerning the area covered by the dwelling be increased from 25 percent to 33.7 percent. 1/
Findings Of Fact On November 12, 1980, the Intervenors requested that they be granted the variances set out in the Issues Statement of this order. The terms and details of that variance application may be found as part of the City's Composite Exhibit No. 1, admitted into evidence. A public hearing was conducted on this request and that hearing was held on January 15, 1981. The taped transcript of that hearing may be found as the City's Exhibit No. 2, admitted into evidence. Following that hearing, a decision was made by the Board of Adjustment and Appeal for the City of Clearwater, Florida, to grant the variance requests. The Petitioners in this cause were opposed to that grant of variance and requested a hearing. The matter was forwarded from the City of Clearwater to the Division of Administrative Hearings and on March 25, 1981, a hearing de novo was conducted to consider this dispute. At the time of the hearing, the Petitioner, Barbara Beakes, was presented as a witness and identified the claim of the Petitioners as being one of opposition to the project in question which requested variances, for reason that it obscured her view of the water; caused a decrease in the value of her property and in addition to her attorney, expressed opposition to the area of coverage to be involved with the proposed building project of the Intervenors and to the front setback line at issue. The Intervenors, Ray and Christine Mayer, who reside at 940 El Dorado Avenue, Clearwater Beach, Florida, through their project, would desire to construct a garage which would be approximately 15.4 feet from the front property line as opposed to the 25 foot front setback line required of the City of Clearwater. The construction in question would not advance the building line in the direction of the street. Moreover, the distance from the street to the front of the building had originally been 13.1 feet when present front setback lines were not in effect. The Intervenors have also requested what they deemed to be a variance from the requirement of maximum lot coverage by their residence, varying it from 25 percent to the 33.7 percent proposed by their construction. As stated in a preceding footnote, it was determined at the hearing that the new requirement for maximum lot coverage is 42 percent and it having been agreed by the parties that the area coverage in question is only 33.7 percent, the necessity for variance on that issue no longer exists. Intervenors' Exhibits Nos. 1, 2, 3, 5, 6, 7 and 8, are photographs depicting the nature of the structure in question in various stages of construction and modification. Notwithstanding the Petitioner Beakes' complaint that her view was obstructed by the construction, there was no specific proof related to the clear space requirement of Section 131.200, City of Clearwater Building and Zoning Requirements, and in fact her view is already obstructed by a fence which now exists on the Mayers' property and the constriction proposed by the Mayers would not materially change that circumstance. The proof on the issue of decreased property value offered by Petitioner Beakes does not seem to be a specific criterion addressed by the variance ordinance.
Findings Of Fact Petitioner Benton and Respondent Maine own adjacent tracts on a dead- end, but navigable, oxbow of the Kissimmee River. The Bentons are weekend and vacation residents, and Maine operates a commercial RV-trailer campsite. To accommodate the needs of his guests for boat launching and landing facilities, Maine constructed a 60 foot pier into the river fronting his property in July, 1982. However, he had not obtained any permits for this construction, and later removed 18 feet of the pier at the direction of the U.S. Army Corps of Engineers. He has applied to DER to obtain after the fact approval of the existing 42 foot pier. He also seeks to extend this pier to 52 feet and to add a 12 foot side dock at the end of the extension. DER has studied the site and reviewed the proposed additional construction. There was no evidence to indicate that the existing pier or the proposed extension would harm the environment or create a navigational hazard. However, the extended pier would occupy fully half of this waterway, which is about 100 feet wide in this area. Petitioner objects to the proposed pier extension on esthetic grounds. Although the pier is constructed at a 90 degree angle to Maine's shoreline, it crosses directly in front of the Benton property. This situation results from the layout of the Benton and Maine tracts which intersect the river at approximately 45 degree angles. An imaginary extension of the Benton and Maine property lines into the river would place much of the existing pier and all of the proposed addition within the Benton extension. The proposed side dock would point toward the Benton property and further aggravate this intrusion. Since the location of the pier is close to the Benton-Maine property line, the proposed side dock's placement would require boats to be launched and landed directly across the Benton waterfront. The Benton property derives its principal value from its waterfront character. Therefore, the degradation of view caused by the pier extension along with the additional boat traffic near the side dock would adversely affect Petitioner's enjoyment of his property.
Recommendation From the foregoing, it is RECOMMENDED that the Department of Environmental Regulation issue a permit to John E. Maine approving his existing 42 foot pier in the Kissimmee River, subject to compliance with Section 253.77, Florida Statutes (1983). It is further RECOMMENDED that the application of John E. Maine insofar as he seeks to lengthen the existing pier be denied; but, that application for a side dock extension, if redesigned as stated herein, be approved. DONE and ENTERED this 23rd day of August, 1984, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1984. COPIES FURNISHED: Vernon E. Benton 1280 North West 127 Street North Miami, Florida 33167 Douglas H. MacLaughlin, Esquire and Astrid L. Wistedt, Legal Intern Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 John E. Maine Route 1, Box 508 Lorida, Florida 33857 Bert J. Harris, III, Esquire Post Office Box 548 Lake Placid, Florida 33852 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact David Gangelhoff operates a boat sales and service facility on property he owns at 405 North Fort Harrison Avenue. This property is divided into two parcels by Hart Street, which dead end at the back of a building facing North Fort Harrison. For the past few years the Appellant has been buying lots in two parcels separated by Hart Street and intends to acquire all the lots in the entire two blocks. After acquiring all of the lots he proposes to request the City to vacate Hart Street. Appellant currently owns the property abutting both sides of Hart Street and the setback requirements for Hart Street will disappear if the City abandons its right- of-way over Hart Street. Building and zoning regulations require a 17' 3" side setback on a building siding on Hart Street, a 3' buffer zone between parking and the property line, landscaping in the 3' buffer zone between the parking area and the north property line, and a 3' setback in the fence parallel to the south property line along Hart Street. Variances (1) and (4) involve the property line abutting Hart Street and variances (2) and (3) involve the north property line of the property where parking is to be provided. Appellant apparently stores some of his boats in an open area toward the back of the property. He proposes to erect a one-story building on a portion of the property north of Hart Street and to construct the south side of this building one foot from the property line abutting Hart Street. This will provide more inside storage. A proposed canopy area along the main building on the north side of the property is to be used for additional storage and to provide better security in the high crime area in which this business is located. The property is zoned CG. The variance in setback in buffer zones for landscaping which are requested by Appellant are such that practically no setback would remain nor would there be a buffer zone if the variances are granted. Allowing Appellant use of his property to the boundary lines would be beneficial to Appellant's business as it would provide a better facility with more enclosed space to provide security for the boats and equipment. No evidence was presented that other property owners in the vicinity have been granted variances similar to those denied to Appellant or that the special conditions and circumstances exist which make this property unique so that denial of the variance would create an undue hardship on the Appellant.
The Issue The issue is whether the City of Boca Raton's (City's) amendments to the Future Land Use Map (FLUM) and the Transportation Element of its Comprehensive Plan (Plan) adopted by Ordinance Nos. 4987 and 4991 on December 11, 2007, are in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties The City is a municipality in eastern Palm Beach County located approximately half way between West Palm Beach and Fort Lauderdale. It adopted the Ordinances which approve the land use amendments being challenged. The Department is the state land planning agency charged with the responsibility for reviewing plan amendments of local governments, such as the City. MCZ is a joint venture real estate company (and an Illinois limited liability company) that acquired ownership of the Club in December 2004. MCZ applied to the City for the plan amendments being challenged and plans to redevelop the property which is the subject of the land use change. Through its agent and consultants, MCZ timely submitted comments to the City during the adoption of the plan amendments. Robert Dukate owns and resides on property facing one of the Club's golf courses, on which are the 29.58 acres that MCZ wishes to develop. He acknowledged that he drafted the Petition (without the assistance of counsel) which was filed in this case. Mr. Dukate timely submitted comments to the City during the adoption of the amendment. The parties agree that he is an affected person. See § 163.3184(1)(a), Fla. Stat. Save Boca is a Florida-for-profit limited liability corporation formed on June 14, 2007, or approximately two months after MCZ filed its application for approval of the plan amendments. According to Petitioners' Exhibit 5, it has around eighty members, although Mr. Dukate stated at hearing that it has "[a]pproximately 70," of which around thirty-five own property at the Club, and twenty-eight live directly adjacent to the proposed development. The corporation's Operating Agreement approved on June 24, 2007, indicates that Save Boca is a "member managed organization." Petitioners' Exhibit 12. However, it has only one manager, Lillian Dukate (Mr. Dukate's wife), who also serves as its Treasurer. Even though Ms. Dukate is the sole manager of the corporation and signed the Petition, she had no role in the drafting of the document. She added that she only reviewed "a little" of the Petition before it was filed in February 2008 and "just kind of skimmed through it just to see what it was." There is one other officer, Ann Pinkocze, who serves as Secretary but has no involvement with the corporation except for signing checks. The Petition alleges that the organization "submitted oral and/or written comments and objections to the amendment during the adoption process." This was confirmed at hearing by Mr. Dukate who indicated that the organization hired an attorney (Jane West, Esquire) to submit oral or written comments to the City Commission during the adoption process. There is some confusion regarding the nature and purpose of the organization. Neither the Articles of Incorporation nor the Operating Agreement (the only two documents pertaining to the operation of the corporation) provides that information. At hearing, Mr. Dukate, who was responsible for its formation, stated that the corporation was formed "for the purposes of saving green space within the City of Boca Raton at the request of many residents in this particular community." He added that it is not necessarily limited to activities within the City and denied that it was formed specifically to oppose these plan amendments or "reap the benefits of any negotiations [it] might have with the developer." Although Section III.6 of the Operating Agreement requires that the organization conduct "an annual membership meeting," and it provides that "any member may call a special membership meeting at any time by communicating to all other members the plan to schedule a special meeting," there is no evidence that the organization has ever held a meeting or passed a resolution. This fact was partially acknowledged by Mr. Dukate when he confirmed that no meetings have been held since the City adopted the amendments in December 2007. Minimal activities conducted by the organization include the filing of a Petition and participating in this matter, sending emails and correspondence to members of the Boca Teeca community, and the hiring of one expert and counsel shortly before the hearing. According to a letter he wrote to his neighbors on June 22, 2007, or around a week after Save Boca was formed, Mr. Dukate urged them to join Save Boca "to coordinate the process" of negotiating with MCZ on behalf of the community in order to reduce the impact of the project as much as possible. Intervenor's Exhibit 21. In an earlier email authored by Mr. Dukate on June 10, 2007, concerning the possibility of hiring an attorney to oppose the project, he stated that "[c]onsidering the amount of money that the city was extracting from this developer -- $3myn [$3 million] + $185K for the median beautification + more money for work-force housing -- we should have no trouble getting in excess of $300k for our community, or almost $10k/house." Intervenor's Exhibit 22. Through cross-examination at hearing, Intervenor sought to establish that there was no action ever taken by the corporation to approve the filing of a petition in this case. However, that issue was not pursued in the Joint Proposed Recommended Order and it is assumed that claim has been abandoned. The Operating Agreement indicates that all management decisions will require "the approval of a majority of managers" and that "[a]ction by written consent may be taken without a meeting, without prior notice, and without a vote." Petitioners' Exhibit 12, page 1. Ms. Dukate is the only manager and she alone could presumably make a decision to initiate a legal proceeding on behalf of Save Boca. Except for the Petition itself, there is no evidence of any other "written consent." Background As noted above, MCZ purchased the Club in December 2004. The Club consists of approximately 212 acres on which are located a residential community known as Boca Teeca, three nine- hole golf courses (known as the north, west, and south courses), a clubhouse, an inn, and maintenance facilities. The Club is bounded on the west by Interstate 95 (I-95), on its southern border by Yamato Road, by a railroad track which lies just west of North Dixie Highway (State Road 811) on its eastern side, and by a canal on its northern boundary. Northwest Second Avenue (a part of which is also known as Boca Raton Boulevard), a City- maintained road, runs in a north-south direction through the eastern half of the property, while Jeffrey Street intersects with Northwest Second Avenue and runs from there through the center of the property in a northwest direction and eventually crosses over I-95 where it becomes Clint Moore Road. MCZ plans to redesign the Club by significantly upgrading the eighteen-hole championship golf course, creating a new nine-hole executive golf course from an existing nine-hole championship course, creating new enhanced social facilities, and constructing 211 new townhome units. The townhomes will be constructed on approximately 29.58 acres in the southwest portion of the property just east of I-95 and south of Jeffrey Street. Nine holes of the existing golf course are currently located on that site and will be eliminated, to be replaced by a nine-hole executive course in another area of the Club. It is fair to infer that one of the driving forces behind this challenge is Petitioners' opposition to the construction of 211 townhomes on what is now open space (currently a nine-hole golf course) lying to the west-southwest of the homes of Mr. Dukate and presumably some other Save Boca members. By application filed with the City on April 10, 2007, MCZ sought approval of the two plan amendments in question, including a change in the 29.58 acres from Recreation and Open Space to Residential Medium (Ordinance No. 4987) and a text amendment (consisting of a new goal, policy, and four objectives and an amendment to an existing policy) to the City's Transportation Element (Ordinance No. 4991). The FLUM amendment allows a density on the property not to exceed 9.5 units per acre, although MCZ has agreed to not exceed 7.1 units per acre. See Policy LU.1.1.2. The text amendments specifically provide for the adoption of an Alternate Traffic Concurrency Standard (ATCS). The effect of the text amendments is to allow a new interim level of service (LOS) standard (1,960 two-way peak hour trips) for that portion of Northwest Second Avenue extending from Yamato Road to Jeffrey Street to account for the anticipated impacts of the proposed development. This was necessary since the traffic volume on the roadway has been, and is currently, exceeding the upper limit of its established LOS E (1,550 vehicles at peak hour). Any development approved pursuant to the ATCS must also employ certain mitigation measures, such as improved turn lanes. The amendments were considered at a meeting of the City's Planning and Zoning Board on June 7, 2007. With one dissenting vote, the Board recommended approval to the City. The amendments were then considered and approved by the City Council at a public hearing conducted on September 11, 2007. On September 25, 2007, the amendment package was transmitted to the Department for its review. (The amendment package included four Ordinances; however, only two are in issue.) On November 30, 2007, the Department issued its Objections, Recommendations and Comment Report (ORC), which cited objections relating to ensuring adequate potable water and transportation capacity to support the proposed map amendments and establishing a level of service (LOS) standard "consistent with Rule 9J-5, F.A.C." More specifically, in terms of traffic impacts, the Department was concerned that the City had only evaluated the impacts of the proposed development rather than the maximum development potential that would be allowed under the new land use category. On December 11, 2007, the City Council voted to adopt Ordinance Nos. 4987 and 4991, which approved the change in the FLUM and amended the Transportation Element. The amendment package was transmitted to the Department for its final review on December 17, 2007. That package included revised data and analysis in response to the ORC. See Finding of Fact 44, infra. On January 25, 2008, a Department staff report was issued recommending that the two Ordinances be found in compliance. This was approved by the Office of Comprehensive Planning on January 28, 2008. On February 4, 2008, the Department published its Notice of Intent in the Boca Raton News. On February 25, 2008, Petitioners filed their Petition contending that Ordinance Nos. 4987 and 4991 were not in compliance. As grounds, they asserted that Ordinance No. 4987 (the FLUM amendment) is inconsistent with Objective REC. 3.1.0 of the Plan, while they generally contended that Ordinance No. 4991 (the text amendment) is inconsistent with the EAR and various provisions within the Transportation Element of the Plan, is not supported by adequate data and analysis, and violates the concurrency statute. Petitioners' Objections Petitioners first contend that the FLUM amendment is inconsistent with Objective REC 3.1.0, which requires the City to "[d]esignate, acquire, or otherwise preserve a system of open space" that, among other things, "provides visual relief from urban development." The Petition alleges that the amendment "reduces the availability of open space, as well as, the availability of land designated for recreational use within the city and does not provide visual relief from urban development." Petition, paragraph 15. Mr. Dukate's residence is approximately 150 feet from the location of the proposed townhome development and overlooks a golf course, some trees, and I-95 in the distance. The proposed townhomes are designed to resemble villas in a Key West architectural style and are clustered in groups of six connected by pedestrian walkways. The height restriction for all units is thirty-five feet. However, the townhomes closest to the single-family homes have been designed as two- story units. There will be significant landscaping and a buffer between the townhomes and I-95 and the existing single-family homes to the east. The evidence shows that if the property is developed, it will provide visual relief from urban development. In addition, the proposed development provides substantial open space on site, over sixty percent more than is required by the City's Land Development Code. The FLUM amendment also furthers the cited Objective by providing pedestrian and bicycle linkages between parks, schools, residential, and commercial areas. Although the issue of compatibility was not raised in the Petition except in the context of proving standing, the City's Principal Planner, Jennifer Hofmeister, established that her review of the FLUM amendment was a "lot more detailed and specific than a lot of other local governments would do [for] their compatibility analysis." Ms. Hofmeister concluded that the two uses are compatible under the current Plan. In making her analysis, she reviewed the adjacent land uses on the FLUM, the proposed site plan submitted by MCZ, including the maximum height of the townhomes, and the densities allowed by single- family neighborhoods and the new land use. Ms. Hofmeister further noted that higher density housing has existed adjacent to single-family homes in the area just north of Yamato Road since the Club was developed in 1973 or 1974. She also pointed out that in the field of planning, medium density (such as townhomes) is considered a transitional land use in the residential land use category and is compatible with a single- family neighborhood. Petitioners' planning expert, Deborah Golden-Gestner, acknowledged that while she had reviewed parts of the application file, such as the Department of Transportation's (DOT) traffic comments, she had never seen or reviewed the challenged plan amendments before she presented testimony at the final hearing. Ms. Golden-Gestner contended that the City's review process was flawed because it failed to consider the 1973 master plan for the Boca Teeca community, which limited development to 1,774 units, of which 1,682 have been built to date. Therefore, she concluded that the FLUM amendment violates the terms of that plan since it allows 211 more units to be built. However, consistency with a master plan is not a compliance consideration. Further, the 1973 master plan was not raised as an issue in the Petition. Assuming arguendo that the master plan is data that could have been considered by the City (although this argument was not made by Petitioners), Ms. Hofmeister established that the property subject to the FLUM amendment (a golf course) has been purchased by a separate entity (MCZ) and is subject to a different master plan. Petitioners have not shown beyond fair debate that the FLUM amendment is inconsistent with the cited Objective or is otherwise not in compliance. Ordinance No. 4991 amends the Transportation Element of the Plan in several respects. First, it revises Policy TRAN. 1.3.1., which prescribes the LOS standards to be maintained on roadways during peak hour and daily conditions, by providing that an exception to those LOS standards is permitted if it is "approved pursuant to Goal 5 of the Transportation Element." At the same time, the Ordinance creates a new Goal 5 which reads as follows: GOAL TRAN. 5.0.0: IT IS THE GOAL OF THE CITY OF BOCA RATON TO IMPLEMENT INTERIM CONCURRENCY MEASURES FOR CONSTRAINED ROADWAYS IDENTIFIED IN THE COMPREHENSIVE PLAN, PENDING THE ADOPTION BY THE CITY COUNCIL OF A MULTI-MODAL TRANSPORTATION DISTRICT ("MMTD") FOR THE CITY. The City also created the following rather lengthy objective and policies to implement the above goal: OBJECTIVE TRAN. 5.1.0: The City Council shall adopt interim traffic concurrency measures that are compatible with, and supportive of, MMTD concepts and principles, including the provision of alternative modes of transportation, funding mechanisms to support transit, applicable roadway improvements and transportation mode connectivity. POLICY TRAN. 5.1.1: The Boca Raton City Council established as its "Major Issue" pursuant to the 2005 Evaluation and Appraisal Report, the adoption of an MMTD for the City. As an interim measure, pending adoption of MMTD Goal, Objective and Policy amendments to the Comprehensive Plan, the City Council desires to implement a procedure for the approval of an alternative traffic concurrency standard ("ATCS") over roadways that are constrained and exceed the adopted level-of-service as provided in Policy TRAN 1.3.1. Any development approved pursuant to the ATCS shall employ mitigation measures as provided below and must be consistent with all other provisions of the Comprehensive Plan. Any development approved pursuant to the ATCS shall implement mitigation measures including, but not limited to, the following: All development shall include on-site and off-site non-vehicular transportation improvements including sidewalks, shared use pathways, transit facilities and/or bike lanes. These improvements shall be constructed to either tie into or expand existing public facilities as a means to provide connectivity to existing regional transit facilities. All development shall continue to test for concurrency pursuant to the Palm Beach County Traffic Performance Standards Ordinance. Any required roadway network improvements otherwise consistent with the Comprehensive Plan, such as turn lanes and signalization improvements shall be constructed by, and at the expense of, the petitioner [developer]. All development shall include a Transportation Demand Management program, traffic calming techniques, a complementary mix of land uses, appropriate densities and intensities of land, access to transit facilities, access management plans and pedestrian friendly site design. Any development approved pursuant to this Comprehensive Plan goal shall enter into an agreement documenting any and all mitigation measures, including any funding necessary to implement MMTD improvements (i.e. mitigation measures) proposed to mitigate roadway level-of-service impacts. POLICY TRAN. 5.1.2: The City shall adopt appropriate Land Development Regulations prior to the approval of any development pursuant to the Code. POLICY TRAN. 5.1.3: Any request for development approval pursuant to the ATCS shall be authorized by the City Council through an amendment to the Comprehensive Plan, and shall be processed in accordance with the Conditional Land Use Amendments and Rezoning provisions found at Chapter 23, Article VI, of the Land Development Code. POLICY TRAN. 5.1.10: Policy TRAN. 1.4.8. establishes NW 2nd Avenue from Yamato Road to the northern City Limit as a 2-lane, undivided, constrained roadway, in order to, among other reasons, maintain the residential character of the adjacent neighborhoods. The following establishes the ATCS for the proposed Ocean Breeze development ("Development") (Universal Conditional Approval Request (UC-06-04)) to satisfy traffic concurrency under Goal 5 of the Transportation Element, pursuant to the purposes stated in this Goal and Objective, subject to the following mitigation measures and conditions: The level-of-service for NW 2nd Avenue between Yamato Road and Jeffrey Street is hereby established as 1,960 two-way peak hour trips. The Ocean Breeze developer shall enter into a written mitigation agreement to implement the below described mitigation measures, including but not limited to those measures provided in POLICY TRAN. 5.1.1., as more specifically defined below. The developer shall contribute $6,000,000 to the City to offset roadway capacity constraints. These dollars shall be used by the City to improve NW 2nd Avenue as a 4-lane divided highway or to fund MMTD improvements that will impact the Development. The Mitigation Agreement shall specify the disposition of funds in the event the Development Order expires. The developer shall construct the following off-site MMTD improvements: sidewalks along NW 2nd Avenue and Jeffrey Street to tie the proposed development into the City's pedestrian and bikeway system. The Mitigation Agreement shall not be transferred or assignable without the written consent of the City and it shall be entered into prior to the issuance of a Development Order. * * * (Although the terms of a mitigation agreement between a local government and a developer are not normally included in the comprehensive plan, the testimony was that local governments are now incorporating this type of language in their plans.) Petitioners have alleged that the amendments adopted by Ordinance No. 4991 are not in compliance for a number of reasons, some of which are quite general in nature and do not identify the specific parts of the lengthy text amendments that are actually being challenged. First, they argue that the amendments are inconsistent with a statement found at page 37 of the City's 2005 EAR, which reads as follows: For any significant future development to occur in this area, Boca Raton Blvd. would need to be widened to a four (4)-lane divided roadway. Developers would be required to fund this improvement. The estimated cost to widen Boca Raton Blvd. to a four (4)-lane divided road is approximately 14.3 million dollars based upon the FDOT Transportation Cost Manual. Petitioners generally assert that because the Mitigation Agreement entered into by the developer and the City only provides for $6 million for the widening of Northwest 2nd Avenue (Boca Raton Boulevard) and not the $14.3 million referred to in the EAR, the amendment and the EAR are inconsistent. An EAR is the first step in updating a local government's comprehensive plan and is prepared every seven years to determine if the plan's goals, objectives, and policies are being met, or if new goals, objectives, and policies need to be implemented. See § 163.3191, Fla. Stat.; Fla. Admin. Code R. 9J-5.003(44). Once an EAR is found to be sufficient by the Department, the next step is for the local government to adopt EAR-based amendments which incorporate the recommended revisions in the EAR. However, there is no requirement in Chapter 163, Florida Statutes, or Florida Administrative Code Rule Chapter 9J-5 that plan amendments be consistent with EAR provisions. See § 163.3184(1)(b), Fla. Stat. In fact, the City may deviate from changes recommended in the EAR, so long as the action taken is supported by adequate data and analysis. In this case, the proposed amendments are not EAR-based amendments, and the Department did not review, and was not required to review, the City's EAR to determine whether the proposed amendments were consistent with that document.6 Petitioners further allege that the City is basing the amendments on the adoption and implementation of the MMTD, which "may, or may not be adopted." Petition, paragraph 18. They go on to allege that this in turn violates GOAL TRAN. 1.0.0, which provides that a goal of the City shall be to provide a safe transportation system. The purpose of a MMTD is to promote alternative forms of transportation, such as pedestrian, bicycle, and transit modes, in order to reduce automobile trips. The 2005 EAR identified the adoption of a MMTD as a major issue for the City. Intervenor's Exhibit 7, Chapter 3. While the City is currently in the planning stages for the establishment of a MMTD, it must first have money in the budget to implement the changes and then prepare amendments to the Plan and Code of Ordinances. The precise date when this will occur, if at all, is unknown. The evidence established that the plan amendments are neither contingent nor dependent on the implementation of the MMTD. Indeed, the traffic analysis supporting the amendments has not assumed that any trips would be removed from the roadway by the implementation of the MMTD. Further, the Department did not consider the implementation of the MMTD in its review of the amendments nor deem it necessary. If the City does in fact implement the MMTD at some future date, it will need to amend its Plan by a separate amendment. Therefore, the MMTD is not relevant to determining whether the amendments are in compliance.7 Petitioners further allege that the plan amendment, which specifically modifies the LOS to allow for 1,960 two-way trips on a segment of Northwest Second Avenue, violates Policy TRAN. 1.4.8 by allowing "congestion which will jeopardize the safety of not only the motorists but especially the pedestrians and the reduction of the quality of life and lead to degradation of the residential character of the community." Petition, paragraph 19. The policy allegedly contravened provides that "NW 2nd Avenue from Yamato Road to the northern city limits shall remain a 2-lane undivided constrained facility in order to maintain the residential character and provide a pedestrian and bicycle friendly culture to adjacent neighborhoods." The segment of roadway at issue is Northwest Second Avenue between Jeffrey Street and Yamato Road, which cuts through the eastern half of the Club and is a local road. Although classified as a "2-lane undivided constrained facility" in the Plan, this roadway is actually considered an undivided three-lane roadway because it has a number of dedicated left turn lanes. Like all City (or local) roads, this segment is designated LOS E, which allows for 1,550 two-way peak trips. This LOS has been consistently exceeded since 1994. (Local governments have the discretion to establish LOS standards on local roads that are not consistent with any LOS standards established by the DOT. See § 163.3180(10), Fla. Stat.) The LOS as defined in the Highway Capacity Manual and accepted by the City and Palm Beach County (County) is ultimately defined in terms of driver delay. The City Traffic Engineer, Douglass Hess, established that various improvements which are required by the City as conditions of approval for these amendments will help improve the LOS along this segment. Specifically, the developer will be required to install sidewalks along Northwest Second Avenue and turn lane improvements at the intersection of Northwest Second Avenue and Jeffrey Street. The turn lane improvements include a redesign of the north-bound turn lane (by expanding the lane from 120 feet to 300 feet long), which will allow for more storage of cars, and the addition of a new south-bound turn lane which will direct traffic to West Jeffrey Street. Mr. Hess also analyzed the intersection of Northwest Second Avenue and Jeffrey Street on a chart demonstrating the average motorist's delay during the morning and afternoon peak hours under three different scenarios. See Intervenor's Exhibit The first scenario was as the intersection currently exists in 2007 peak season; the second is 2010 conditions without the development; and the third demonstrated 2010 conditions with the development, including the lane improvements. The Exhibit reflects that the average delay in seconds during morning and afternoon peak hours under existing traffic conditions in 2007 is now 74.8 and 73.1 seconds, respectively, or LOS E. Under 2010 traffic conditions with development, including the required improvements, the average delay in seconds will be reduced to 30.5 and 47.3 seconds during morning and afternoon peak hours, respectively, or within the standards for LOS C and D. Therefore, any congestion will greatly improve with this development and the improvements required by the City. Petitioners further allege that Policy TRAN. 1.3.7 is violated "due to a lack of accurate [traffic] data being provided to the city" (Petition, paragraph 17), and "[i]ncreasing the peak-hour traffic level of service standards for a development results in having no standards at all and should not be allowed under the policies of responsible growth planning and therefore violates the concurrency requirements required by the State of Florida" Petition, paragraph 20. Policy TRAN. 1.3.7 provides that "[p]roposed land use changes shall only be approved when traffic impact studies or mitigation measures ensure that adopted roadway level-of-service standards will be upheld." The new LOS for the segment in question is 1,960 two-way peak trip hours, of which only seventy-eight are attributable to the proposed development at the Club during the peak hour. In determining the impact of the development, the City Traffic Engineer considered a number of factors. First, he noted that the traffic volumes on this segment of roadway had actually been declining over the past several years. Even so, he elected to increase the existing traffic by a compounded growth rate of 1.15 percent per year. Second, based upon data provided by the County and City, he also included committed traffic that has not yet materialized on the roadway network. This is traffic that is associated with the approved projects within the area that have not yet reached full build-out of the development. Finally, he added to the roadway network the traffic associated with the Club development. The foregoing analysis resulted in the volume on the relevant segment of roadway to be 1,908 in the peak hour. Because of concerns noted by the Department in its ORC, which asked that the City assume a total build-out of the proposed new zoning category rather than the reduced number of units proposed by MCZ, the City made a second analysis of the traffic impacts. In its second analysis, the City evaluated the impacts using a horizon year of 2012, rather than 2010. Even though the developer proposed to construct only 211 townhomes, the City assumed that there would be 281 dwelling units on the property. With these new assumptions, the traffic volume increased to 1,958, which was still within the proposed LOS standard of 1,960 vehicles during the peak hour. The City reacted appropriately to this data and analysis when it adopted the challenged amendments. In challenging Ordinance No. 4991, Petitioners relied primarily upon the testimony of Larry Hymowitz, a Transportation Planner with the DOT who submitted comments to the Department on November 21, 2007, as part of the Department's review process. See Petitioners' Exhibit 10. The DOT is one of the agencies that is required by law to be provided with copies of proposed amendments for review and to then forward its comments to the Department. In criticizing the same amendment, Ms. Golden- Gestner also relied heavily upon the DOT's comments. Although Mr. Hymowitz concluded that there was a lack of information submitted by the City to demonstrate that adequate mitigation had been proposed to offset the increased traffic from the project, he did not review the adoption package or any other documentation dated after September 2007. Therefore, he was unaware of the additional data and analysis submitted by the City. In this respect, his analysis was flawed. Mr. Hymowitz also incorrectly assumed that the LOS for the Boca Raton Boulevard segment was LOS D, or 1,250 trips per peak hour. In doing so, he overlooked a footnote in the City's transmittal package to the Department which explained that links within the jurisdiction of the City are assigned LOS E. Moreover, the only objection noted by the DOT in its written comments was related to potential traffic impacts on I-95 and U.S. Highway 1. The evidence establishes, however, that the impact of the proposed development on I-95 between Glades Road and Yamato Road (which are the roadways having the two closest ramps onto I-95) was only six trips during peak hour, which is considered to be insignificant and requires no mitigation. Similarly, the impacts on U.S. Highway 1 were small, and the impacted sections would continue to operate at an acceptable LOS D throughout the building of the project and into the horizon year of 2012. Petitioners' traffic consultant, Mr. Wyman, concluded that because Northwest Second Avenue is already a constrained roadway, and the project will generate new traffic, the City should require "proper" mitigation, such as four-laning the roadway or scaling back the development. In reaching this conclusion, Mr. Wyman questioned the accuracy of the City consultant's traffic report. He stated that if he had prepared the traffic report, he would have used more conservative estimates for pass-by trips and different directional components in the traffic count calculation. He agreed, however, that the traffic counts were done "professionally and correctly," he stated that he "respected" the methodology used by the City's consultant, and he agreed that a traffic study includes some subjective analysis by the person performing the study. Finally, in a similar vein, Petitioners have raised a broad contention that "concurrency" requirements under Section 163.3180, Florida Statutes, have been violated. Petition, paragraph 20. (Although the statute runs for eight pages, a more specific citation to a particular part of the statute was not given.) In responding to this broad contention, the Department's Regional Planning Administrator pointed out that the Department is not required to make a concurrency determination in its review of a plan amendment. Rather, its review is limited to determining whether the local government is properly planning for its public facilities. In doing so, the Department determines whether the City (a) has the facilities available at the present time to meet the needs of the proposed development, or (b) the City has plans for facilities to be in place when the impacts of the development occur. Thus, the actual concurrency determination is made by the local government at the time a development order or permit is issued. In this case, the Department determined that the new LOS standard of 1,960 trips on the impacted roadway segment was sufficient to accommodate the development of the project at the maximum development potential. Finally, contrary to Petitioners' assertion, in establishing the new LOS, the City was not required to include any capital improvements in its schedule of capital improvements since none are necessary to maintain that standard. Petitioners have failed to show beyond fair debate that the plan amendments adopted by Ordinance No. 4991 are not supported by adequate data and analysis, are inconsistent with other Plan provisions, violate the concurrency statute, or are otherwise not in compliance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the City's plan amendments adopted by Ordinance Nos. 4987 and 4991 are in compliance. Jurisdiction is retained for the purpose of considering Intervenor's Motions for Sanctions, Fees, and Costs, if renewed within thirty days after a final order is entered in this matter. DONE AND ENTERED this 4th day of August, 2008, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 2008.
Findings Of Fact Respondent, Circle K Corporation (Circle K), is the owner of a piece of property at mile marker 30.5, big Pine Key, Monroe County, Florida. As sited, the subject property is located within that part of Monroe County designated as an Area of Critical State Concern (ACSC). On June 26, 1986, Circle K applied to Monroe County for a building permit to construct a convenience store, with two service islands for the sale of gasoline, upon the subject property. As sited, the property occupies the southeast corner of the intersection of U.S. 1, also known as State Road 5, and Chapman Road. As proposed, the convenience store would face U.S. 1, and would accord its patrons direct access to U.S. 1 by way of a curb cut that was located 80 feet from the intersection of U.S. 1 and Chapman Road, and direct access to Chapman Road by way of a curb cut that was located 60 feet from the intersection of U.S. 1 and Chapman Road. Attached hereto as Appendix II is a copy of Circle K's site plan, which graphically depicts the proposed project and curb cuts. Pertinent to this case, that portion of Circle K's plan which sought approval to gain direct access to U.S. 1 by way of a curb cut that was located 80 feet from Chapman Road was denied by Monroe County's Planning Director. Circle K appealed that decision to the Monroe County Planning Commission which, on September 3, 1987, reversed the decision of the planning director and approved Circle K's proposal. In so doing, the planning commission articulated the following reasons for its action: The decision of the Planning Director is overturned and the appeal is granted pursuant to: (1. Section 9-1404 granting temporary parallel access on the basis that to deny this would create a safety hazard. AND (2. The FD0T permit is to be considered superior to local driveway permitting. The FDOT (Florida Department of Transortation) permit referenced in the Commission's decision was a connection permit issued by FDOT to Circle K on May 28, 1987. That permit authorized Circle K to connect its driveway to U.S. 1, provided the connection was constructed in accordance with existing FDOT regulations, and carried the following legend conspicuously stamped thereon: VALIDITY OF THIS PERMIT IS CONTINGENT UPON PERMITTEE OBTAINING NECESSARY PERMITS FROM ALL OTHER AGENCIES INVOLVED. On September 25, 1987, the Monroe County Building and Zoning Department, in accordance with the Commission's decision, issued Permit No. A18731 to Circle K. That permit approved Circle K's plan to construct a convenience store on the subject property, with direct access to U.S. 1 as initially proposed. Petitioner, Department of Community Affairs (Department), pursuant to Section 380.07, Florida Statutes, filed a timely appeal with the Florida Land and Water Adjudicatory Commission (Adjudicatory Commission) contesting the propriety of the aforesaid permit (development order) because it authorized development with direct access to U.S. 1 by way of a curb cut spaced less than 400 feet from an existing street on the same side of U.S. 1. Monroe County land development regulations Pertinent to this case, Monroe County Land Development Regulations (MCLDR) provide: ... ACCESS STANDARDS Sec. 9-1401. Major Road Access. No structure or land shall be developed, used or occupied unless direct access to U.S. 1 or County Road 905 is by way of a curb cut that is spaced at least 400 feet from any other curb cut that meets the access standards of the Florida Department of Transportation or an existing street on the same side of U.S. 1 or County Road 905. Sec. 9-1402. Parallel Access. Lots that cannot meet the major access standard in Section 9-1401 shall take access from platted side streets, parallel streets or frontage roads. Such access shall be acquired by installing a parallel street or frontage road, through combined parking lots or by combining lots by sharing drives, or the provision of easements of access. * * * Sec. 9-1404. Temporary Access. No applicant shall be denied development approval for the sole reason that the lot cannot meet the requirements of Sections 9-1401 or 9- 1402. To provide access the Director of Planning shall issue a temporary access permit provided that the landowner's site plan provides for the eventual connection to a parallel access on an adjoining property, and that the owners agree, with suitable legal documents to close the temporary access when connection to adjoining properties is feasible. The foregoing provisions of Monroe County's land development regulations have been found consistent with the Principles for Guiding Development for the Florida Keys Area of Critical State Concern, and constitute land development regulations for the Florida Keys Area of Critical State Concern in Monroe County.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order reversing Monroe County's decision to issue permit number A18731, and deny Circle K's application for such permit. It is further recommended that such final order specify those items set forth in paragraph 7, Conclusions of Law, as the changes necessary that would make Circle K's proposal eligible to receive the requested permit. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of December, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 1988.
The Issue The issue is whether the Type B site plan for the 78-unit townhome/condominium project known as Park Terrace Townhomes should be approved.
Findings Of Fact Parties Skipper is the applicant for the Type B site plan at issue in this proceeding, No. TSP060026. Skipper owns the property on which the project will be developed, Parcel ID No. 21-23-20-417-000-0 (the project site). The City is the local government with jurisdiction over the project because the project site is located within the City limits. The Association is a voluntary neighborhood association encompassing 343 lots in an established single-family residential neighborhood generally located to the northeast of the Tharpe Street/Old Bainbridge Road intersection, adjacent to the project site. The purpose of the Association is to “preserve and enhance the quality of life in [the] neighborhoods by taking coordinated action on matters which advance the common good of all residents,” and one of the Association’s objectives is to “protect[] the neighborhood from incompatible land use and rezoning.” The Project Site (1) Generally The project site is located to the north of Tharpe Street, to the east of Old Bainbridge Road, and to the west of Monticello Drive. The project site is bordered on the south by the Old Bainbridge Square shopping center. It is bordered on the north, east, and west by the residential neighborhood represented by the Association. The project site consists of 13.91 acres. The western 11.11 acres of the project site are zoned R-4, Urban Residential. The eastern 2.8 acres of the project site are zoned RP-1, Residential Preservation. The project site is roughly rectangular in shape. It is 300 feet wide (north to south) and approximately 2,100 feet long (east to west). The project site is located within the Urban Service Area (USA) boundary. The Tallahassee-Leon County Comprehensive Plan specifically encourages infill development within the USA. The project site is designated as Mixed Use A on the future land use map in the Comprehensive Plan. Residential development of up to 20 units per acre is allowed within the Mixed Use A land use category. The project site has been zoned R-4/RP-1 since 1997 when it was rezoned from Mixed Use A as part of the City-wide rezoning of all mixed use properties. Multi-family residential was an allowable use under the Mixed Use A zoning district, as was small-scale commercial. The R-4 zoning is intended to function as a “transition” between the commercial uses to the south of the project site and the single-family residential uses to the north of the project site. The R-4 zoning district allows a wide range of residential development at a density of up to 10 units per acre. (2) Surrounding Zoning and Uses The property to the north, east, and west of the project site is zoned RP-1, and is developed with single-family residences. The neighborhood adjacent to the project site is stable and well established. Most of the homes are owner- occupied, and many of the residents are retirees. The property to the south of the project site is zoned UP-1, Urban Pedestrian, and is developed with commercial uses, namely the Old Bainbridge Square shopping center. There is an existing stormwater pond located on the northwest portion of the shopping center parcel, adjacent to the southern boundary of the project site. (3) Environmental Features on the Project Site The project site is vacant and undeveloped, except for several concrete flumes and underground pipes located in the drainage easements that run north/south across the site. The project site has been impacted by the surrounding development in that household and yard trash has been found on the site. The vegetative community on the project site is considered to be upland hardwood forest. There are a number of large trees on the project site, including pecan, cherry, pine, gum, and various types of oak trees. There are also various exotic plants species on the site, such as kudzu. The vegetative density is consistent throughout the project site. The land in the general vicinity of the project site slopes from south to north. The elevations along Tharpe Street to the south of the project site are in 220 to 230-foot range, whereas the elevations in the neighborhood to the north of the project site approximately one-quarter of a mile north of Tharpe Street are in the 140 to 160-foot range. The elevations across the R-4 zoned portion of the project site range from a high of 214 feet on the southern boundary to a low of 160 feet on the northern boundary. The southern property boundary is consistently 30 to 40 feet higher than the northern property boundary across the entire R-4 zoned portion of the project site. The slopes are the main environmental feature of significance on the project site. There are a total of 7.32 acres (319,110 square feet) of regulated slopes -- i.e., severe or significant grades -- on the project site, which is more than half of the total acreage of the site. There is a ravine that runs in a northwesterly direction across the RP-1 zoned portion of the project site. The ravine is considered to be an altered wetland area and/or altered watercourse. The regulated slopes and altered wetland/watercourse areas on the project site were depicted on a Natural Features Inventory (NFI) submitted in September 2005, prior to submittal of the site plan. The City’s biologists reviewed the original NFI, and it was approved by the City on October 13, 2005. A revised NFI was submitted in March 2007. The revised NFI removed the man-made slopes from the regulated slope areas, and made other minor changes based upon comments from the staff of the Growth Management Department. The City’s biologists reviewed the revised NFI, and it was approved by the City on August 24, 2007. The Association questioned the change in the amount of regulated slopes identified on the project site, but it did not otherwise contest the accuracy of the NFIs. Roger Wynn, the engineer of record for the project, testified that the amount of regulated slopes on the project site changed because the man-made slopes were initially included in the calculation but were later removed. That testimony was corroborated by the James Lee Thomas, the engineer who coordinated the Growth Management Department’s review of the project. The Project (1) Generally The project consists of 78 townhome/condominium units in 14 two-story buildings. It was stipulated that the density of the project is 7.02 units per acre, which is considered “low density” under the Comprehensive Plan and the LDC. The stipulated density is calculated by dividing the 78 units in the project by the 11.11 acres on the project site in the R-4 zoning district. If the entire acreage of the project site was used in the calculation, the project’s density would be 5.61 units per acre. All of the buildings will be located on the R-4 zoned portion of the project site. Five of the buildings (with 21 units) will have access to Monticello Road to the east by way of Voncile Avenue. The remaining nine buildings (with 57 units) will have access to Old Bainbridge Road to the west by way of Voncile Avenue. There is no vehicular interconnection between the eastern and western portions the project. There is no vehicular access to the project from the north or south. However, pedestrian interconnections are provided to the north and south. The only development on the RP-1 zoned portion of the project site is the extension of Voncile Avenue onto the site. The remainder of the RP-1 zoned property will be placed into a conservation easement. The Voncile Avenue extension will end in a cul-de-sac at the eastern boundary of the R-4 zoned portion of the project site. The extension will be constructed to meet the City’s standards for public roads, and it will comply with the City’s Street Paving and Sidewalk Policy. The other streets shown on the site plan are considered private drives because they are intended to serve only the project. Those streets and the internal cul-de-sacs have been designed to allow for the provision of City services - – e.g., trash, recycling, fire -– but they do not have to meet the City’s Street Paving and Sidewalk Policy. It was stipulated that the project is consistent with the City’s Driveway and Street Connection Regulations, Policies and Procedures. It was stipulated that the project is consistent with the City’s Parking Standards. The City’s Parking Standards Committee approved tandem parking spaces and an increase in the number of parking spaces in the project. It was stipulated that the project is consistent with the City’s concurrency policies and regulations. A preliminary certificate of concurrency was issued for the project on March 9, 2007. It was stipulated that the project is consistent with the City’s requirements for utilities -- e.g., water, sewer, stormwater, electricity, gas, cable -- and infrastructure for those utilities. However, the Association still has concerns regarding various aspects of the project’s stormwater management system. See Part D(3), below. (2) Site Plan Application and Review On August 4, 2005, the City issued Land Use Compliance Certificate (LUCC) No. TCC060219, which determined that 94 multi-family residential units could be developed on the R-4 zoned portion of the project site. The LUCC noted that the RP-1 zoned portion of the project site “is not eligible for multi-family development,” and that the “[a]ttainment of the full 94 units on the R-4 zoned property may be limited by the presence of regulated environmental features that will be determined via an approved Natural Features Analysis [sic].” On March 10, 2006, Skipper submitted a Type B site plan application for the project. The initial site plan included 82 multi-family units in 13 buildings; an extension of Heather Lane onto the project site to provide vehicular access to the north; vehicular access to the west by way of Voncile Avenue; and no vehicular access to the east. The Tallahassee-Leon County Planning Department (Planning Department) and other City departments expressed concerns about the initial site plan in memoranda prepared in advance of the April 10, 2006, DRC meeting at which the site plan was to be considered. A number of neighboring property owners submitted letters to the DRC and other City departments detailing their concerns about the project. A number of neighboring property owners also sent “petitions” to Skipper urging him to reduce the density of the project and to construct single-family detached units rather than multi-family units. The DRC “continued” -- i.e., deferred consideration of -- the site plan at its April 10, 2006, meeting as a result of the concerns expressed by the City departments. The site plan was also “continued” by the DRC at each of its next 10 meetings. Skipper submitted a revised site plan in February 2007 that reduced the number of units in the project from 82 to 78; eliminated the extension of Heather Lane onto the project site; added the connection to Voncile Avenue on the east; and made other changes recommended by City staff. It is not unusual for a site plan to be revised during the DRC review process. Indeed, Mr. Wynn testified that it is “very uncommon” for the initial version of the site plan to be approved by the DRC and that the approved site plan is typically an “evolution” of the initial site plan. That testimony was corroborated by the testimony of Dwight Arnold, the City’s land use and environmental services administrator. The City departments that reviewed the revised site plan -- growth management, planning, public works, and utilities -- each recommended approval of the site plan with conditions. A total of 21 conditions were recommended, many of which were standard conditions imposed on all site plans. The DRC unanimously approved the site plan with the 21 conditions recommended by the City departments at its meeting on March 26, 2007. The DRC was aware of the neighborhood’s objections to the project at the time it approved the site plan. Mr. Arnold, testified that the Growth Management Department was “extraordinarily careful” in its review of the site plan as a result of the neighborhood’s concerns. The site plan received into evidence as Joint Exhibit J13 is an updated version of the revised site plan submitted in February 2007. It incorporates all of the DRC conditions that can be shown on the site plan. For example, the updated site plan shows the “stub-out” at the southern property boundary and the pedestrian interconnections requested by the Planning Department as well as the appropriately designated handicapped parking spaces requested by the Public Works Department. The site plan review process typically takes six months, but Mr. Arnold testified that the process can take longer depending upon the number of issues that need to be addressed. Mr. Arnold testified that there is nothing unusual about the one-year period in this case between the submittal of the site plan and its approval by the DRC. Issues Raised by the Association The primary issues raised by the Association in opposition to the project are the alleged incompatibility of the proposed multi-family development with the surrounding single- family neighborhood; concerns about increased traffic in and around the neighborhood; concerns relating to the design of the project’s stormwater management system and the potential for stormwater run-off from the project to cause flooding in the neighborhood; and the alleged inadequate protection of the environmentally sensitive features on the project site. The public comment presented at the final hearing generally focused on these same issues, but concerns were also raised regarding the potential for increased crime and decreased property values in the neighborhood if college-aged students move into the proposed multi-family units on the project site. Compatibility Protecting the integrity of existing residential neighborhoods from incompatible development is a specifically emphasized “growth management strategy” in the Land Use Element of the Comprehensive Plan. Policy 2.1.1 [L] of the Comprehensive Plan promotes the protection of “existing residential areas from encroachment of incompatible uses that are destructive to the character and integrity of the residential environment.” Paragraph (c) of Policy 2.1.1 [L] requires the adoption of land development regulations to limit future higher density residential development adjoining low density residential areas. Such limitations “are to result in effective visual and sound buffering (either through vegetative buffering or other design techniques) between the higher density residential uses and the low density residential uses; [and] are to discourage vehicular traffic to and from higher density residential uses on low density residential streets.” These Comprehensive Plan provisions are implemented through the buffering requirements in LDC Section 10-177, which requires landscaping and fencing to be installed between potentially incompatible land uses. The width of the buffer and the amount of the landscaping required vary depending upon the proposed and existing land uses. The multi-family development proposed in the project at 7.02 units per acres is not inherently incompatible with the existing single-family neighborhood surrounding the project site. Indeed, as noted above, both uses are considered low density under the LDC and the Comprehensive Plan. Multi-family residential development on the project site furthers the intent of the R-4 zoning district in that it provides for a “transition” between the commercial uses in the Old Bainbridge Square shopping center to the south of the project site and the single-family residential neighborhood to the north of the project site. The Planning Department expressed concerns about the initial site plan’s compatibility with the surrounding neighborhood in its March 24, 2006, memorandum to the DRC. The memorandum recommended that the project be redesigned -- with a lower density and/or clustered single-family lots or townhomes - - in an effort to make it more compatible with the surrounding neighborhood. The Planning Department does not have the authority to require a project to be redesigned; it can only recommend that the developer consider alternative designs. The Planning Department does not have compatibility concerns with the revised site plan. Indeed, Mary Jean Yarbrough, a senior planner with 10 years of experience with the Planning Department, testified that “the site plan has changed significantly from the first submittal” and that it now “meet[s] the compatibility requirements of the comprehensive plan.” Similarly, Wade Pitt, an expert in local land use planning, testified that the project meets the compatibility requirements in the Comprehensive Plan and the LDC. Mr. Pitt also testified the project furthers the intent of the R-4 zoning district by providing a transition between the commercial uses to the south of the project site and the single-family residential uses to the north of the project site. Some of the changes in the site plan mentioned by Ms. Yarbrough that led to the Planning Department no longer having compatibility concerns with the project were the elimination of the Heather Lane interconnection; the reduction in the number of units in the project; the reduction in the size of the eastern stormwater pond; the inclusion of buffers in the project; and the elimination of the road through the project, which allowed for more extensive conservation areas in the central portion of the project site. A Type D buffer is required where, as here, the existing use is single-family and the proposed use is multi- family. The width of a Type D buffer can range from 30 to 100 feet, but the wider the buffer, the less landscaping that is required. The site plan includes a 30-foot wide buffer along the project site's northern and western property lines, as well as along the eastern border of the R-4 zoning district on the project site.1 The 30-foot Type D buffer is required to contain at least 12 canopy trees, six understory trees, and 36 shrubs for every 100 linear feet of buffer. The northern boundary of the R-4 zoned portion of the project site is approximately 1,600 feet long, which means that there will be approximately 864 plants -- 192 canopy trees, 96 understory trees, and 576 shrubs -- in the buffer between the proposed multi-family units and the neighborhood to the north of the project site. The Association contends that a 60-foot Type D buffer should have been required. However, Ms. Yarbrough persuasively testified that the 60-foot buffer actually provides less buffering because it is not required to be as densely vegetated as the 30-foot buffer provided on the site plan. Portions of the buffer shown on the site plan overlap the designated conservation areas that will be subject to the conservation easement on the project site. Mr. Arnold testified that it is not uncommon for buffers to overlap conservation areas. The conservation areas will be disturbed in those areas where the trees and shrubs are planted to comply with the landscaping requirements for the buffer. An eight-foot high fence will be constructed along the northern and western property lines. The site plan shows the fence several feet inside the property line, within the designated conservation areas. However, Mr. Arnold and City biologist Rodney Cassidy testified that the fence will have to be placed outside of the conservation areas along the property lines. LDC Section 10-177(f)(5) does not impact the placement of the fence on the property line as the Association argues in its PRO. That code section requires planting materials to be located on the outside of the fence “[w]hen residential uses buffer against other uses.” Here, the residential uses on the project are not being buffered against “other uses”; they are being buffered against the same type of use, residential. None of the six buildings on the northern side of the project site directly abut the buffer. Only one of the buildings is closer than 40 feet from the northern property line, and three of the buildings are as much as 80 feet from the northern property line. The only development actually abutting the 30-foot buffer is the retaining walls for the stormwater management ponds. The walls will be covered with vines to minimize their aesthetic impact on the adjacent properties. It is not necessary that the trees and shrubs in the buffer reach maturity before a certificate of occupancy is issued; all that is required is that the appropriate type and number of trees and shrubs are planted. The project is adequately buffered from the existing single-family residences to the north and west of the project site. The buffer requirements in the LDC have been met. In addition to the landscaped buffer and fence, impacts of the project on the surrounding neighborhood have been mitigated by the placement of parking on the interior of the site and by the elimination of the Heather Road interconnection that was in the initial site plan, which would have directed more traffic from the project onto the neighborhood streets. In sum, the more persuasive evidence establishes that the project is not inherently incompatible with the surrounding single-family uses and that its impacts on the surrounding neighborhood have been mitigated as required by the LDC. Thus, there is no basis to deny the site plan based upon the incompatibility concerns raised by the Association. Traffic Concerns There is currently considerable traffic on Old Bainbridge Road, particularly during rush hour. This makes it difficult for residents of the neighborhood north of the project site to turn left onto Old Bainbridge Road from Joyner Drive. The amount of traffic on Old Bainbridge Road is in no way unique. There are many streets in the City that have similar amounts of traffic, particularly during rush hour. Vehicles leaving the project will utilize Voncile Avenue, Joyner Drive, and Monticello Drive to access Old Bainbridge Road or Tharpe Street. Those streets are considered collector roads, not local streets. The number of vehicles expected to utilize the local streets in the neighborhood to the north of the project site will not be significant from a traffic engineering perspective. The initial version of the site plan showed Heather Lane being extended onto the project site and connected with a street running through the project. This interconnection, which is no longer part of the site plan, would have increased the amount of traffic on the surrounding neighborhood streets because Heather Lane runs through the middle of the neighborhood to the north of the project site. There are expected to be less than 50 trips entering the eastern portion of the project during the afternoon peak hour, and less than 20 trips entering the western portion of the project during the afternoon peak hour. The exiting trips during the afternoon peak hour are expected to be about half those amounts. The number of trips generated by the project fall below the one percent or 100 trip threshold in the City’s concurrency regulations. A preliminary certificate of concurrency, No. TCM060026, was issued for the project on March 9, 2007, indicating that there will be adequate capacity of roads (and other infrastructure) to serve the project. No credible evidence to the contrary was presented. LDC Section 10-247.11 requires properties in the R-4 zoning district to have vehicular access to collector or arterial streets if the density is greater than eight units per acre. Where, as here, the density of the project is less than eight units per acre, vehicular access to local streets is permitted. In any event, as noted above, access to the project site is by way of Voncile Avenue, which is considered a collector road. In sum, there is no basis to deny the site plan based upon traffic concerns because the project satisfies the City’s traffic concurrency requirements. Stormwater Management/Flooding Concerns Currently, stormwater run-off from the project site flows uncontrolled across the site, down the slope towards the neighborhood to the north that is represented by the Association. The neighborhood had severe flooding problems in the past. The City resolved those problems by reconfiguring the stormwater management system and constructing several stormwater ponds in the neighborhood. The Association is concerned that the stormwater run- off from the project will cause flooding in the neighborhood. The Association also has concerns regarding the design of the stormwater ponds and their proximity to the neighborhood. The project site is located in the upper reaches of a closed basin. As a result, the project’s stormwater management system is subject to the additional volume control standards in LDC Section 5-86(e), which requires the volume of post- development stormwater run-off from the site to be no greater than pre-development run-off. The project’s stormwater management system provides volume control, rate control, and water quality treatment. The system complies with all of the design standards in LDC Section 5-86, including the additional closed basin standards in paragraph (e) of that section. The project will retain all post-development stormwater run-off on site by capturing it and routing it to two stormwater ponds located in the north central portion of the project site. Stormwater run-off will be captured by roof collectors on the buildings and inlets on the streets and then routed to the stormwater ponds through underground pipes. The two stormwater ponds are designed with retaining walls on their north/downhill sides. The walls will have a spread footing, which was a design change recommended by Mr. Thomas to improve the functioning of the ponds. The walls will be eight to nine feet at their highest point, which is less than the 15-foot maximum allowed by LDC Section 5-86(f)(7), and they will be covered with vegetation as required by that section. Access to the stormwater ponds for maintenance is provided by way of the 20-foot wide “pond access” easements shown on the site plan for each pond. These easements meet the requirements of LDC Section 5-86(g)(2). The stormwater ponds are roughly rectangular in shape, rather than curvilinear. The shape of the ponds is a function of the retaining walls that are required because of the sloping project site. The stormwater ponds have been visually integrated into the overall landscape design for the site “to the greatest extent possible” as required by LDC Section 5-86(f)(10). The south side of the ponds will be contoured with landscaping, and the walls around the ponds will be covered with vegetation. The final design of the stormwater ponds and the retaining walls is evaluated during the permitting phase, not during site plan review. The walls must be designed and certified by a professional engineer, and the construction plans submitted during the permitting phase will include a detailed analysis of the soil types on the site to determine the suitability of the walls and to ensure the proper functioning of the ponds. The project’s stormwater management system will also collect and control the overflow stormwater run-off from the existing stormwater pond on the Old Bainbridge Square shopping center site. That run-off currently overflows out of an existing catch basin on the eastern portion of the project site and flows uncontrolled across the project site, down the slope at a rate of 6.7 cubic feet per second (CFS). After the project is developed, that run-off will flow out of a redesigned catch basin at a rate of 0.5 CFS, down the slope through a conservation area, to a graded depression area or “sump” on the northern property line, and ultimately to the existing stormwater management system along Heather Lane. Mr. Arnold and Mr. Cassidy testified that the reduced flow down the slope will benefit the conservation area by reducing erosion on the slope. Mr. Cassidy further testified that he was not concerned with the flow through the conservation easement forming a gully or erosion feature or otherwise altering the vegetation in that area, and that potential impacts could be addressed in a management plan for the conservation area, if necessary. The stormwater ponds and other aspects of the project’s stormwater management system will be privately owned and maintained. However, the operation and maintenance of the system will be subject to a permit from the City, which must be renewed every three years after an inspection. The City can impose special conditions on the permit if deemed necessary to ensure the proper maintenance and function of the system. The more persuasive evidence establishes that the project’s stormwater management system meets all of the applicable requirements in the LDC. On this issue, the testimony of Mr. Thomas and Mr. Wynn was more persuasive than the stormwater-related testimony presented on behalf of the Association by Don Merkel. Mr. Merkel, a former engineer, “eyeballed” the project site and the proposed stormwater management system; he did not perform a detailed analysis or any calculations to support his criticisms of the project’s stormwater management system. In sum, there is no basis to deny the site plan based upon the stormwater management/flooding concerns raised by the Association. Protection of Environmental Features on the Project Site The NFI is required to depict all of the regulated environmental features on the site, including the regulated slopes. The revised NFI approved by the City in August 2007 accurately depicts the environmentally sensitive features on the project site. The environmental features regulated by the City include “severe grades,” which are slopes with grades exceeding 20 percent, and “significant grades,” which are slopes with 10 to 20 percent grades. The project site contains 5.74 acres (250,275 square feet) of “significant grades” and 1.58 acres (68,835 square feet) of “severe grades.” Those figures do not include man-made slopes in the existing drainage easements across the site, which are not subject to regulation. There are 0.76 acres (33,056 square feet) of severe grades on the R-4 portion of the project site that are regulated as significant grades because of their size and location. Thus, there are a total of 6.50 acres (283,331 square feet) of slopes regulated as significant grades on the project site. LDC Section 5-81(a)(1)d. provides that 100 percent of severe grades must be protected and placed in a conservation easement, except for severe grades that are less than one- quarter of an acre in size and located within an area of significant grades that are regulated as significant grades. LDC Section 5-81(a)(2)d. provides that a minimum of 50 percent of significant grades must be left undisturbed and placed in a conservation easement. LDC Section 5-81(a)(2)d.1. provides that the significant grades to be protected are those areas “that provide the greatest environmental benefit as determined by the director [of growth management] (i.e., provides downhill buffers, protects forested areas, buffers other protected conservation or preservation areas, or provides other similar environmental benefits).” The Environmental Impact Analysis (EIA) included with the site plan shows that 100 percent of the severe slopes that are regulated as such are protected and will be placed in a conservation easement. The EIA shows that a total of 3.05 acres (133,002 square feet) of the significant grades on the project site will be impacted. That figure is 46.9 percent of the total significant grades on the project site, which means that 53.1 percent of the significant grades will be undisturbed and placed into a conservation easement. It is not entirely clear what environmental benefit is provided by some of the smaller conservation areas shown on the site plan, such as those between several of the buildings, but Mr. Cassidy testified that he took the criteria quoted above into consideration in determining that the site plan meets the applicable code requirements and is “approvable." Moreover, Mr. Arnold testified that similar “small pockets” of conservation areas are located in other areas of the City and that fencing or other appropriate measures can be taken to ensure that the areas are not disturbed. The EIA will be approved simultaneously with, and as part of the site plan. The conservation easement is not required during site plan review. Rather, LDC Section 5-81(b) requires the easement to be recorded no later than 30 days after commencement of site work authorized by an environmental permit. LDC Section 5-81(a)(2)d.1. provides that development activity in the area subject to the conservation easement is prohibited, except for “vegetation management activities that enhance the vegetation and are specifically allowed in a vegetation management plan approved by the director [of growth management].” LDC Section 5-81(b) provides that a management plan for the area subject to a conservation easement “may be approved provided the activity does not interfere with the ecological functioning of the conservation or preservation area and the activities are limited to designs that minimize impacts to the vegetative cover.” That section further provides that the management plan is to be approved “during the [EIA].” Mr. Cassidy testified that an approved management plan is required in order to plant trees in a conservation area. He further testified that impacts related to the construction of the buffer fence could be addressed in the management plan, if necessary. No management plan has been prepared or approved for the project even though there will be planting in the conservation areas that overlap the 30-foot Type D buffer. In sum, more persuasive evidence establishes that the regulated environmentally sensitive features on the project site are accurately depicted in the NFI; that the required amounts of regulated slopes are protected on the site plan; and that, subject to approval of a management plan for the plantings in the buffer as part of the EIA, the project complies with the requirements of the LDC relating to the protection of environmentally sensitive features. Other Issues The final hearing was properly noticed, both to the parties and the general public. Notice of the final hearing was published in the Tallahassee Democrat on September 9, 2007. An opportunity for public comment was provided at the final hearing, and 16 neighboring property owners spoke in opposition to the project. A number of the concerns raised by the Association and the neighboring property owners who spoke at the hearing are permitting or construction issues, not site plan issues. For example, issues related to the engineering specifications for the stormwater pond retaining walls and issues related to the protection of the conservation areas from construction impacts will be addressed and monitored as the project moves through the permitting process. Mr. Arnold testified that Association and neighboring property owners are free to provide input and express concerns on those issues to the appropriate City departments as the project moves through permitting and construction.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Planning Commission approve the Type B site plan for the Park Terrace Townhomes project, subject to the 21 conditions recommended by the DRC and additional conditions requiring: the eight-foot high buffer fence to be located on the property lines, outside of the designated conservation areas; and a management plan to be approved for the conservation areas that will be disturbed through the plantings required in the Type D buffer. DONE AND ENTERED this 7th day of November, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 2007.
The Issue Whether Respondent Pierson should be granted variances to permit construction of a triplex on a lot 95 feet wide and 87 feet deep. To do so the three variances required are (1) of 5 feet in width, (2) of 13 feet in depth, and (3) 753 square feet in area (10,000 square feet required).
Findings Of Fact Don Curtis Pierson owns the north one-half of Lot 2 and all of Lot 3, Block 6, Revised Map of Clearwater Beach, and has owned this property for some 28 years. The property is zoned RM-20 and is high density residential developed. Pierson's lot is approximately 95 feet by 87 feet (approximately 82,500 square feet). The property is currently occupied by a duplex which was constructed according to Code, except for variances of zero setback from the coastal construction control zone and a 6 foot height variance to permit the construction of a building 31 feet in height. Appellant is the owner of a multifamily building adjacent to Pierson's property which was constructed before various code provisions became effective and was constructed to the lot lines without any setbacks. When Pierson applied for variances in 1983 to construct a triplex on his property, the Board of Adjustment Appeal granted setback variances of 10 feet in rear and front setback lines to permit the construction of a triplex on this property. Vasilaros appealed that grant, and on July 12, 1983 the undersigned heard that appeal. On August 31, 1983, an order was entered denying the setbacks, but approving the construction of a triplex on the lot less than 10,000 square feet in area. That approval was predicated upon then Section 131.020 of the Land Development Code which waived the area requirement for a lot of record. This Section was removed in the 1985 rewrite of the Land Development Code. Specific code provisions respecting the size of the lot on which a three family structure may be erected are in Section 135.044 which requires a minimum lot area of 10,000 square feet, and minimum lot width and depth of 100 feet each. The applicant's only hardship upon which the requested variance can be granted is the uniqueness of the property becoming nonconforming solely by reason of zoning changes.
Findings Of Fact Appellant acquired the residence located at 1549 Levern Street approximately three years ago. The house was constructed some 30 years age and its outside dimensions have not been altered since construction. The house abuts the front setback line which is 25 feet from the front property line. The area is zoned RS-50, which is single family homes with up to 8.7 dwelling units per net acre. Minimum lot size for RS-50 is 5,000 square feet. Appellant resides in the home with his wife, and they are the only permanent occupants. He proposes to extend the front wall of his living room eight feet into the setback area the width of the living room which is 18 feet. This will increase the size of the living room by this amount. The existing living room is quite narrow and inadequate for Appellant's wife to comfortably entertain her church group. None of Appellant's neighbors oppose the variance of eight feet into the front setback requested by Appellant, and some support this request. Most of the other homes in the vicinity of Appellant's property are in conformity with the setback requirements of the building and zoning code. Appellant's lot is not unique or unusual but is similar to other lots in this section of the city. Some inference was made that when this home was constructed setback lines had not been established in this area and that, had the original owner so desired, the house could have been constructed closer to the front lot line than the 25 feet now prescribed by the zoning regulations. Even if this is assumed to be true, it is not relevant to the request for variance here under consideration.
